论竞争损害理论视角下的音乐版权拒绝交易行为边界

On the Boundary of Music Copyright Refusal to Deal in the Light of Competitive Damage Theory

网络音乐平台从音乐作品权利人处获取“独家授权”和“转授权许可”资格后,若借助其在相关市场中的市场优势拒绝向其他音乐平台许可著作权,存在排除、限制竞争的风险。但碍于反竞争动机不易识别,相关权利主体拒绝许可著作权存在法律合理性,且反垄断法干预程度的界限掌控较难把握,有必要借助竞争损害理论严格把控反垄断法规制拒绝许可著作权行为的边界。所涉及的行为构成分析要件包括明晰在相关市场中的市场地位、行为是否阻碍相关市场竞争、有无正当理由等。

After obtaining the “exclusive license” and “sublicense” status from the author, the online music platform refuses to license the copyright to other music platforms by virtue of its market advantage in the relevant market, which probably results in excluding and restricting competition. However, since it is not easy to identify the anti-competitive motive, the refusal to license copyright by the relevant rights holders is legally justified, and it is difficult to control the boundary of the degree of antitrust law intervention, it is necessary to seek for the help of competition damage theory. The elements of the analysis of the constitution of the act involved include the clear market position in the relevant market, whether the act impedes competition in the relevant market, and whether there are justifiable reasons, etc.